Fifth Amendment and Waiver to Amended and Restated Loan and Security Agreement, dated as of November 29, 2017, among Summer Infant, Inc. and Summer Infant (USA), Inc., as Borrowers, Summer Infant Canada, Limited and Summer Infant Europe Limited, as Guarantors, Certain Financial Institutions as Lenders and Bank of America, N.A. as Agent

Exhibit 10.8

FIFTH AMENDMENT AND WAIVER TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT

This FIFTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”) is dated as of November 29, 2017 by and among SUMMER INFANT, INC. and SUMMER INFANT (USA), INC., as “Borrowers” under the Loan Agreement referenced below (“Borrowers”), SUMMER INFANT CANADA, LIMITED and SUMMER INFANT EUROPE LIMITED, as “Guarantors” under the Loan Agreement referenced below (“Guarantors” and together with the Borrowers, the “Obligors”),  the “Lenders” party to the Loan Agreement referenced below (“Lenders”), and BANK OF AMERICA, N.A., in its capacity as “Agent” for the Lenders under the Loan Agreement referenced below (“Agent”).

WHEREAS, Borrowers, Guarantors, Lenders and Agent are parties to that certain Amended and Restated Loan and Security Agreement dated as of April 21, 2015, as amended by that certain Amendment to Amended and Restated Loan and Security Agreement dated as of December 10, 2015 (the “First Amendment”), that certain Second Amendment to Amended and Restated Loan and Security Agreement dated as of May 24, 2016 (the “Second Amendment”), that certain Third Amendment and Waiver to Amended and Restated Loan and Security Agreement dated as of February 17, 2017 (the “Third Amendment”), and that certain Fourth Amendment and Waiver to Amended and Restated Loan and Security Agreement dated as of October 16, 2017 (the “Fourth Amendment”) (the Amended and Restated Loan and Security Agreement, as amended by the First Amendment, the Second Amendment, the Third Amendment and the Fourth Amendment, and as the same may be further amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”);

WHEREAS, pursuant to the Fourth Amendment, the Loan Agreement was, among other things, amended to provide for the Revolver Borrowing Base (as defined in the Loan Agreement) to be temporarily increased by the Temporary Overadvance Amount (as defined in the Fourth Amendment) to address, among other things, the Revolver Overadvances (as defined in the Loan Agreement) that were primarily attributable to the Toys “R” Us Insolvency Proceedings (as defined in the Fourth Amendment); and

WHEREAS, notwithstanding the inclusion of the Temporary Overadvance Amount in the Revolver Borrowing Base, during the period from the Fourth Amendment Effective Date (as defined in the Fourth Amendment) through the date of this Amendment, the aggregate outstanding Revolver Loans have from time to time exceeded the Revolver Borrowing Base, resulting in continuing Revolver Overadvances (“Continuing Revolver Overadvances”);

WHEREAS, Borrowers have requested that Agent and Lenders waive any violations of the Loan Agreement that are directly attributable to the Continuing Revolver Overadvances and that Agent and Lenders amend certain provisions of the Loan Agreement to, among other things, extend the duration of the period during which the Temporary Overadvance Amount is in effect and increase the applicable amounts of the Temporary Overadvance Amount during the period from the date of this Amendment through December 30, 2017; and

WHEREAS, Lenders and Agent are willing to waive any violations of the Loan Agreement that are directly attributable to the Continuing Revolver Overadvances during the period from the Fourth Amendment Effective Date through the date of this Amendment and to amend certain provisions of the Loan Agreement, all as more fully described herein.

NOW, THEREFORE, in consideration of the foregoing and the agreements contained herein, the parties agree that the Loan Agreement is hereby amended as follows:

1.                                      Capitalized Terms.  Capitalized terms used herein which are defined in the Loan Agreement have the same meanings herein as therein, except to the extent such terms are amended hereby.

2.                                      Waiver of Violations Directly Attributable to Continuing Revolver Overadvances.  Subject to the satisfaction of the terms and conditions set forth in this Amendment, Agent and Lenders hereby waive any violations of the Loan Agreement that occurred during the period (the “Supplemental Overadvance Waiver Period”) commencing on the Fourth Amendment Effective Date and continuing through the Fifth Amendment Effective Date (as defined in Section 3(b) of this Amendment) that are directly attributable to the Continuing Revolver Overadvances.  The parties agree that (a) the foregoing waiver is limited solely to violations of the Loan Agreement occurring during the Supplemental Overadvance Waiver Period that are directly attributable to the Continuing Revolver Overadvances and (b) that nothing herein shall be construed as a waiver of any other provision of the Loan Agreement.

3.                                      Amendments to Section 1.1 of the Loan Agreement.  Section 1.1 of the Loan Agreement is hereby amended as follows:

(a)                                 The definition of “Temporary Overadvance Amount” is hereby amended and restated in its entirety, as follows:

“Temporary Overadvance Amount: means the following amounts during the following periods:

(b)                                 The following new defined term is hereby inserted in Section 1.1 of the Loan Agreement in the appropriate alphabetical order:

“Fifth Amendment Effective Date:  the date on which that certain Fifth Amendment and Waiver to Amended and Restated Loan and Security Agreement became effective, which date is November 29, 2017.”

4.                                      No Default; Representations and Warranties, Etc.  Obligors hereby represent, warrant and confirm that: (a) after giving effect to this Amendment, all representations and warranties of Obligors in the Loan Agreement and the other Loan Documents are true and correct in all material respects

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(without duplication of any materiality qualifier contained therein) on and as of the date hereof as if made on such date (except to the extent that such representations and warranties expressly relate to or are stated to have been made as of an earlier date, in which case, such representations and warranties shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date); (b) after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing; and (c) the execution, delivery and performance by Obligors of this Amendment and all other documents, instruments and agreements executed and delivered in connection herewith or therewith (i) have been duly authorized by all necessary action on the part of Obligors (including any necessary shareholder consents or approvals), (ii) do not violate, conflict with or result in a default under and will not violate or conflict with or result in a default under any applicable law or regulation, any term or provision of the organizational documents of any Obligor or any term or provision of any material indenture, agreement or other instrument binding on any Obligor or any of its assets, and (iii) do not require the consent of any Person which has not been obtained.

5.                                      Ratification and Confirmation.  Obligors hereby ratify and confirm all of the terms and provisions of the Loan Agreement and the other Loan Documents and agree that all of such terms and provisions, as amended hereby, remain in full force and effect.  Without limiting the generality of the foregoing, Obligors hereby acknowledge and confirm that all of the “Obligations” under and as defined in the Loan Agreement are valid and enforceable and are secured by and entitled to the benefits of the Loan Agreement and the other Loan Documents, and Obligors hereby ratify and confirm the grant of the liens and security interests in the Collateral in favor of Agent, for the benefit of itself and Lenders, pursuant to the Loan Agreement and the other Loan Documents, as security for the Obligations.

6.                                      Conditions to Effectiveness of Amendment.  This Amendment shall become effective as of the date when, and only when, each of the following conditions precedent shall have been satisfied or waived in writing by Agent:

(a)                                 Agent shall have received counterparts to this Amendment, duly executed by Agent, Lenders and Obligors.

(b)                                 Borrowers shall have paid to Agent, for the account of each Lender (including Bank of America, N.A., in its capacity as a Lender), an amendment fee in an amount equal to 15 basis points multiplied by such Lender’s Commitment.

(c)                                  Borrowers shall have paid all other fees and amounts due and payable to Agent and its legal counsel in connection with the Loan Agreement, this Amendment and the other Loan Documents, including, (i) the fees payable pursuant to that certain Fifth Amendment Fee Letter dated as of the date hereof between Borrowers and Agent, and (ii) to the extent invoiced, all out-of-pocket expenses required to be reimbursed or paid by Borrowers under the Loan Agreement.

8.                                      Miscellaneous.

(a)                                 Except to the extent specifically amended hereby, the Loan Agreement, the other Loan Documents and all related documents shall remain in full force and effect.

(b)                                 This Amendment may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but all counterparts shall together constitute one instrument.

(c)                                  Borrowers shall reimburse Agent for, or pay directly, all reasonable out-of-pocket costs and expenses of Agent (including, without limitation, the reasonable fees and expenses of Agent’s legal counsel) in connection with the preparation, negotiation,

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execution and delivery of this Amendment and the other Loan Documents, within 30 days of Borrowers’ receipt of invoices (in reasonably sufficient detail) setting forth such costs and expenses.

(d)                                 This Amendment shall be governed by the laws of the State of New York and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

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IN WITNESS WHEREOF, the parties hereto have executed this Amendment which shall be deemed to be a sealed instrument as of the date first above written.

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